O, R. v

Where a defendant attacks the character of a prosecution witness, evidence of the defendant’s bad character may be admitted through the witness-character gateway if its admission is fair. The attack may consist of alleging that the witnesses initiated violence and colluded in false accounts.

The fairness assessment is fact-sensitive. A recent conviction for possessing a bladed article may fairly assist the jury in resolving a direct conflict about whether the defendant or the complainant was more likely to have used a bladed article offensively rather than defensively. Propensity is an example of relevance to an important matter in issue, but it does not exhaust that gateway.

The appellant was convicted in the Crown Court at Inner London of unlawful wounding contrary to section 20 and wounding with intent contrary to section 18 of the Offences against the Person Act 1861. The convictions arose from two incidents in which two complainants sustained wounds from scissors and a Stanley knife respectively.

The prosecution alleged unprovoked attacks. The appellant maintained self-defence, alleging that each complainant had initiated violence and that the injuries occurred during struggles to disarm them or defend himself. After those allegations were put to the complainants, the trial judge admitted the appellant’s recent conviction for possessing a Stanley knife under section 101(g) of the Criminal Justice Act 2003.

On appeal, the issue was whether that bad-character evidence was admissible and, if so, whether fairness required its exclusion.

1. Appeal dismissed. The trial judge was entitled to admit the appellant’s recent conviction for possessing a Stanley knife under section 101(g) of the Criminal Justice Act 2003.

2. The defence had made a substantial attack on the characters of both complainants. It alleged not merely that they had begun the violence, but that they had colluded in lies and, in one incident, that the complainant had produced the knife. That brought the evidence within the witness-character gateway.

3. The evidence was fairly admitted. The incidents involved a direct conflict over whether the appellant or a complainant was more likely to take up a bladed article for attack rather than defence. The jury were entitled to know that the appellant had carried a Stanley knife at school only a few months earlier. The judge’s directions identified the limited basis for admission and left any inference of a propensity to carry bladed articles to the jury.

4. The court rejected the submission that the issue depended upon proving propensity to commit the charged wounding offences. Although propensity is an example under section 103(1)(a), section 101(d) more generally concerns relevance to an important matter in issue between the defendant and the prosecution. The previous conviction was also capable of being relevant to who initiated violence and who took up the weapon. That observation did not alter the decisive conclusion that the evidence was properly admitted under section 101(g).

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2009] EWCA Crim 2235.
• Crown Court at Inner London: On 27 January 2009, the appellant was convicted of unlawful wounding and wounding with intent. On 21 April 2009, he received concurrent detention and training orders.